For the purposes of defining and addressing issues of infringement of the rights guaranteed under the Canadian Charter of Rights and freedoms (“Charter”) by the Access to Abortion Services Act (“Act”), the facts between the R. v. Lewis case and this case are indistinguishable. Demers, like Lewis, was charged with protesting in an access zone of an abortion clinic in contravention of the Act. However, Demers casts his argument somewhat differently than Lewis. Rather than confining his argument to either section 7 (the right of the foetus to life) or to section 2(b) (his own right to freedom of expression), he makes the section 2(b) argument dependent on the section 7 argument. Demers argued that the court must declare that a foetus has the right to life under section 7 and rule section 2(1) of the Act to be unconstitutional as a result, and acquit him of the charges. The ruling he wants on section 7 of the Charter would have the effect of declaring abortion constitutionally unlawful.
A coalition including West Coast LEAF, the Elizabeth Bagshaw Society, Every Woman’s Health Centre Society (1988), the B.C. Women’s C.A.R.E. Program, and the B.C. Pro-Choice Action Network Society (“Clinic Coalition”) was granted leave to intervene in the case. The Clinic Coalition argued: “In attempting to raise the issue of whether foetuses have rights under s. 7 of the Charter, the Appellant is essentially mounting a collateral attack on the legality of abortion rather than directly challenging existing legislation that recognizes abortion as a lawful medical service. Such collateral attacks are especially inappropriate in Charter cases, where the legislative context provides the framework for assessment and balancing of completing fundamental values.”
Justice Low held that “the Supreme Court has dealt with issues of foetal rights and status in other areas of the law. The courts have made it clear that any preference of foetal rights over the rights of pregnant women as addressed in Morgentaler is a matter best left to the careful consideration of the legislators.” The appeal was dismissed.
Please find the Clinic Coalition’s Factum here.